New York & Havre Steam Navigation Co. v. Young

3 E.D. Smith 187

Opinion

By the Court. Ingraham, First J.

The plaintiffs claim freight upon goods brought in one of their vessels, consigned to Caffe & Cutter, to be delivered to them or their assigns. On the arrival of the vessel, the goods were sent to a bonded warehouse; and afterwards, the consignees made an assignment to the defendant, and also assigned to him the bill of lading, upon which he received the goods from the public store on payment of the duties. This action is brought for the freight.

We long since held that the assignee who receives the goods on a hill of lading, and not the consignee, is liable for the freight. (Burton v. Strachan and Scott, New York Common Pleas, July 1846.)

(a) And this is now well settled to he the law. (Merian v. Funk, 4 Denio, 110.)

The only point of difference in this case is, that the assignment was made after the goods were sent to the public store. If the delivery at the public store was to be considered a delivery to the consignee, there might be some reason for holding the consignee liable. But such delivery is not for the benefit of the consignee, but in pursuance of law, which directs a general order for that purpose. A compliance with that order does not deprive the plaintiffs of their right to claim the freight from the person who receives the goods on the bill of lading. (13 East, 569; 4 Adolph, and Ellis,. 295.) That is the only evidence of delivery, and the receipt of the goods by an assignee of the bill of lading, renders him liable for the freight as the party who receives the goods. There never was a delivery of the goods until the party having the bill of lading claimed them. That person was the defendant. He claimed the goods as assignee of the bill, and received them. I see no ground for relieving him from liability for freight.

In the case in 4 Denio, 110, one parcel had been sent to the public store long before the assignment, and yet the court held the consignees not liable. The reverse of the proposition follows. If the consignees are not liable, the assignee is.

Judgment affirmed.

Note by Reporter.—The case of Burton v. Strachan, like Merian v. Funk, was an action for freight, brought against the consignees named in the bill of lading, who had endorsed the same to a third party before the actual delivery of the goods, but after they had been deposited in the public warehouse, under a general order to discharge the ship. The former case was tried in this court, before Ingraham, First J., who nonsuited the plaintiff, and the nonsuit was sustained at a general term, in July, 1846. In Merian v. Funk, the Superior Court rendered a judgment in favor of the plaintiff, which was reversed, on error to the Supreme Court, in January, 1847. (4 Denio, 110.)

The opinion filed in Burton v. Strachan has been obtained from the records, and seems of sufficient interest and importance to justify its publication.

It is as follows :

George Buckham, for the plaintiff.

Francis F. Marburg, for the defendants.

By the Court. Ulshoeffer, First J.—The question in this case is, to whom may the ship owners look for freight ? The defendants were the consignees (according to the bill of lading) of the goods for which freight is claimed—but they had endorsed the bill over to one Hill, for whom the goods were intended, before the arrival of the vessel Hill sent for and obtained the goods, upon producing the endorsed bill of lading. After delivery, the plaintiffs sent a bill of freight to the •defendants, who declined paying, and referred the plaintiffs to Hill. The defendants acted for the consignors, but without compensation, and had no interest in the transaction. The consignors, no doubt, are liable for freight. (17 Johns. 237.)

On examining the cases cited by counsel on this argument, I think that it is clear that the ship owners must look to the assignee of the bill of lading, to whom the goods were delivered. (13 East, 569-70; 4 Adol. and Ellis, N. S. 295.) The contract was to deliver to the defendants or their assigns, the defendants or their assigns paying freight. The ship owners can only look to the holder of the bill of lading, to whom it was assigned by the consignee, and to whom the goods were in fact delivered. The law appears to be too well settled to be matter of doubt. But the plaintiffs insist that as they did not know of Hill being the assignee, they are presumed to have delivered the goods to the defendants, or on their account. The plaintiffs were not bound to deliver the goods to any one unless upon payment of freight. But if they did deliver upon an endorsed bill of lading, they delivered to the assignee who received the goods, and not to the assignor. But the consignee or assignor gave no notice of such assignment, nor was any notice requisite beyond what was given by the actual endorsement of the bill of lading. The receipt for the goods was given by the servants of Mr. Hill, and in his name ; and if the ship owners (when an endorsed bill of lading is presented, and the goods demanded) do not inquire who the assignee of holder of the bill is, and deliver the goods without inquiry, they cannot look to the consignee, but can only look to him to whom they delivered the goods. A blank endorsement of a bill of lading transfers the property, and the holder is the assignee. The ship owners may, in such cases, refuse to deliver the goods to assignees unless the freight is paid, if they are doubtful as to their responsibility; or they may refuse to deliver to any one who does not pay the freight down. If the goods are delivered, the ship owners can only look to the consignee or Ms assigns, to whom the delivery was made. As in this case the delivery was not made to the defendants, they are not liable to pay the freight. But if the plaintiffs could consider the defendants to be the apparent or presumptive' consignees liable for the freight, the evidence in this case shows clearly that the defendants were not the consignees in fact, and that they endorsed the bill of lading to the proper consignee, or party in interest, before the arrival of the vessel. It is also manifest that the goods were received by Mr. Hill, and not by the defendants, and that if the plaintiffs did not know Hill, it was because they did not inquire as to the person to whom they blindly delivered the goods. The defendants were not hound to pay freight unless they received the goods, or assumed the ownership upon the arrival of the vessel. The proof is clear that before the vessel’s arrival the defendants endorsed over to Hill the bill of lading, and that the defendants had no interest or concern in the matter after-wards.

It seems to me that there was no sufficient testimony in this case to require it to he sent to the jury upon questions of fact. Upon the testimony, I think the judge properly held that the defendants were not liable, and that such was the legal conclusion arising from the evidence. As matter of law, it appears to me that the defendants are not liable for this freight, and that whatever doubts or intimations may be found in some cases to the contrary, the clear weight of the authorities is, that the consignees are not liable by the mere act of endorsing over the bill of lading to another person. On the contrary, it seems clear to my "mind that the act of endorsing the bill of lading is, within the terms and according to the legal effect of the bill, an assignment thereof, and that the assignees who receive the goods are alone liable to pay the bill for the freight.

Judgment of nonsuit affirmed.